Bipin Shah v. State of Connecticut (2012)

MEMORANDUM OF DECISION

This is a Motion to Strike.   It was “taken on the papers.”

Bipin Shah filed a Petition for a New Trial dated October 13, 2011.   His criminal trial started June 15, 2010 and ended June 25, 2010.   He was convicted on one count of Attempt to Commit Risk of Injury in violation of C.G.S. § 53–21(a)(1), Attempt to Commit Risk of Injury, in violation of Connecticut General Statutes § 53–21(a)(2), and one count of Attempt to Commit Enticing a Minor in violation of Connecticut General Statutes § 53a–90a(b)(1).   He was sentenced on September 15, 2010.

In support of the motion, the petitioner asserts he has newly discovered evidence in the form of testimony from two witnesses, Jerry Smith and Karen Brett, which would conclusively prove that Detective Blanchard was not truthful when he testified at trial that he was the only person chatting as “Samantha Miller.”

The State has moved to strike the petition for new trial.   In support of the motion, the State asserts:  1) the information is not newly discovered evidence;  2) it is offered to impeach Detective Blanchard;  and 3) a new trial would not produce a different result.

Detective Blanchard's Testimony

The petitioner included the following as the detective's trial testimony:  Starting February 23, 2008, until April 3, 2008, he posed as a fourteen-year-old female named Samantha Miller.   His purpose was to catch sexual predators and over the previous two years he had conducted approximately forty-eight investigations.

On January 23, 2008, he logged into Yahoo and entered a chat room as Samantha Miller 13.   He placed all of the typed conversations (chats) in a folder and transferred them to the archive section of the computer.¹

Detective Blanchard agreed that the chats admitted into evidence were consistent with his memory about them.   On cross examination, he confirmed that he was the only undercover officer who used the alias Samantha Miller, he used both a desktop and a laptop, and his usual working hours were 7:30 to 3:30.   Sometimes he had chats from home as Samantha Miller at eight or nine o'clock at night.

On redirect Detective Blanchard stated it was not unusual for him to chat from home at night if he were trying to get someone to travel to a meeting spot.   He further testified on re-cross that he was not paid for time he spent outside of work hours chatting, unless he got the person to travel to a location.

Detective Blanchard was pressed on why he did not have notations on his time sheet for a chat on the case that had occurred in March at 8:30 p.m., and whether he had been ultimately reimbursed for that chat.   He responded that sometimes he chose not to put in his hours for the late night chats.   Detective Blanchard was then asked the following:  “So you do this essentially as volunteer work is that your testimony today?”   Detective Blanchard replied as follows:  “yes, I guess it is.”

PROFFERED TESTIMONY OF JERRY SMITH

Mr. Smith would testify as follows:  on April 6, 2008, while waiting for Bipin Shah to be arraigned, he went into the coffee shop in the courthouse where he overheard a conversation between two men who were talking about their computer chats.   He listened to them for two to three minutes as they talked and laughed about how stupid people were in chat rooms, and how surprised they were at just how easy it was to elicit incriminating statements.   Mr. Smith concluded one of them was talking about his chat with Bipin Shah. Mr. Smith turned to see who they were and noticed the badges attached to their front pants pocket.   He concluded they were plain clothes police officers.

Mr. Smith attended pre-trial hearings and the trial.   He was also present when Detective Blanchard testified that he was the only one who had computer chats with Bipin Shah as Samantha Miller.   Furthermore, he recognized that Detective Blanchard was not either of the men he had seen in the coffee shop on the arraignment date, April 6, 2008.   He described one of the men as 5' 5” or 5' 6,” with thinning blond hair, and the other as 5' 9” to 6' 0” with black hair.

PROFFERED TESTIMONY OF KAREN BRETT

Ms. Brett would testify as follows:  on March 12, 2011, she posed as a student and met with Lieutenant Robert Harrison of the Naugatuck Police Department and asked him some questions.   Lieutenant Harrison informed her that their department differs from larger police departments like New York City, as larger cities have permanent officers assigned to each department.   His police department has nine (9) detectives and seven (7) of them must be on duty at all times.   He further stated that the on-duty officers are assigned by the shift supervisor to a department, based on caseloads.

Ms. Brett also questioned Lieutenant Hanson about the Sex Crimes Unit. He informed her two (2) detectives are assigned to the Sex Crimes Unit on all shifts.   The Computer Sex Unit has two parts, one deals with child porn and the other concentrates on chats.   Two (2) detectives are assigned to the Sex Crimes Unit on all shifts and when the shift changes or an officer is out, another officer works the case.   An officer could be out due to illness, a day off or vacation.

Discussion

The defendant has petitioned for a new trial pursuant to Connecticut General Statute § 52–270 and Connecticut Practice Book § 42–55.   In order to get a new trial, the petitioner must demonstrate by a preponderance of the evidence:  1) the proffered evidence is newly discovered, and it could not have been discovered earlier by the exercise of due diligence;  2) it could be material to a new trial;  3) it is not merely cumulative;  and 4) it is likely to produce a different result in a new trial.  Asherman v. State, 202 Conn. 429, 424, 521 A.2d 578 (1987)

NEWLY DISCOVERED EVIDENCE

The proffered testimony of Mr. Smith is not newly discovered evidence.   He was aware of this information when he overheard the conversation on April 6, 2008, the day petitioner was arraigned.   He also attended pre-trial hearings and the trial.   He was present when Detective Blanchard testified and recognized he was not a party to the conversation he overheard in the coffee shop in the courthouse.

If the defendant wanted to, by exercising due diligence, he could have learned the identity of the officers and questioned the one Mr. Smith concluded was talking about the petitioner, Bipin Shah. He could have questioned Detective Blanchard further about the police department procedures for investigations in general and this one in particular.

Furthermore, it is questionable whether the information is admissible since it is double hearsay with no identified exception.   Finally, the proffered testimony does not prove Detective Blanchard was not truthful.

The proffered testimony of Ms. Brett is newly discovered as the interview with Lieutenant Harrison occurred on March 12, 2011.   This was approximately three years after the arraignment, nine months after the trial and six months after sentencing.   However, this information could have been discovered with the exercise of due diligence.   On the date of petitioner's arraignment Mr. Smith believed he overheard a plainclothes officer talking about a chat with petitioner.   The petitioner could have inquired of the police department concerning investigations, assignments and the chats in this case.   Petitioner had the opportunity to question Detective Blanchard on cross examination and re-cross.   Again, petitioner could have inquired about the procedures in the police department before or during trial.

The petitioner has concluded that Lieutenant Harrison's description of the Computer Sex Unit, and how it is staffed, means a chat in March was conducted as Samantha Miller by a police officer other than Detective Blanchard.

The proffered testimony has no information about whether Detective Blanchard was absent on the days of the chats which were admitted into evidence and whether or which other officer worked the case, specifically chatting as Samantha Miller.

Additionally, Ms. Brett's testimony about the statements of Lieutenant Harrison is double hearsay with no identified exception.   Furthermore, even if admitted, it would not lead to the conclusion that Detective Blanchard was untruthful or that there was illegal gathering of evidence.   At most, one chat in March may have been conducted by another officer.

The petitioner makes several references to Detective Blanchard's credibility and indicated the proffered testimony would show he was not truthful.   In the response memo, petitioner asserts that the proffered testimony does more than impeach, it attacks the admissibility of the evidence.

The petitioner objected to the admission of the chats ² and is looking for another opportunity to challenge the foundation on which the trial court relied in admitting them.   Detective Blanchard was subjected to cross examination and re-cross.   Petitioner believes the trial court erred in admitting the chats into evidence.   This petition is not the avenue to challenge that ruling.

NEW TRIAL

The Court reiterated in Skakel v. State, 295 Conn. 447 (2010), as it had explained in Shabazz v. State, 295 Conn. 811 (2002), that “the trial court must always consider the newly discovered evidence in the context of the evidence presented in the original trial.”   The question is whether the proffered evidence is sufficiently credible so that if a second jury were to consider it together with all of the original trial evidence, it probably would yield a different result or otherwise avoid an injustice.

“Only under most exceptional circumstances, even in a capital case, could a witness' testimony be so important and influential that a court could, within the limits of a sound discretion, determine that new evidence merely impeaching the witness' credibility would produce a different result ․” [citation omitted.]  State v. Weiner, 61 Conn.App. 738, 753 (2001).

In this case the testimony proffered does not prove Detective Blanchard was untruthful or that someone else chatted as Samantha Miller on the one day in March.   However, if someone else also had a chat with the defendant on that day, it would be admissible through that other officer, and the remaining chats would still be in evidence.

Should the court admit the proffered double hearsay testimony of Mr. Smith and Ms. Brett to challenge the credibility of Detective Blanchard, it does not necessarily lead to the conclusion that a jury, considering it along with all the evidence in the case, would reach a different result.   If admitted, it would be one chat more and if not admitted, it would be one chat less.   The other chats would still be in evidence.

CONCLUSION

The court has considered the petition, the motion, the objection thereto and all memoranda.   The court has also considered the submitted trial testimony of Detective Blanchard and the proffered testimony of Mr. Smith and Ms. Brett.

The defendant, in order to get a new trial must demonstrate, by a preponderance of the evidence, all four factors established in Asherman, supra.   Since the defendant has not established the first or fourth factor, the court need not discuss the second and third factors.

As the defendant is not entitled to a new trial, the Motion to Strike is granted.

CRAWFORD, J.

FOOTNOTES

FN1. The “chats” were admitted, over the defendant's objection as exhibits 3–13 or 3–16..  FN1. The “chats” were admitted, over the defendant's objection as exhibits 3–13 or 3–16.

FN2. Exhibit 3–13 or Exhibit 3–16..  FN2. Exhibit 3–13 or Exhibit 3–16.

Crawford, Juliett L., J.